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LITERATURE REVIEW.

2.0 INTRODUCTION.

The background literature review of this study is to Analyze the contribution of International
Human Rights Cooperation’s and other Human Right’s Agencies such as U.H.R.C1 in ensuring
the promotion, enjoyment, preservations and protection of prisoner’s right’s world-wide;
Uganda inclusively. The literature seeks to address the epistemological gap of the unknown
tragedies that befall prisoners and how various Government Organizations entitled with the basic
mandate to cater for these prisoners have protected the prisoner’s welfare globally. According to
the Human Rights Watch2, a prison project in 2023 was launched uttering the unchecked
outbursts of prison violence frequently violating the prisoners right to life. A report broke
through last August, at least 29 prisoners were killed in a remote jungle facility in Venezuela
leading the Country’s Justice Ministry charged with prison administration to promise reforms
and its public ministry to conduct extensive investigations of the incident’s causes. The
Tajikistan government earlier in the year, chose to cover up an even bloodier prison massacre
due reports falling in mid-April that indicated the Tajik Security Forces stamped a prison in
northern city of Khujand, killing over a hundred prisoners. Relative to that, inmates had rioted
and taken several guards hostage to protest life-threatening detention conditions.

Ignoring the Human Rights Watch Request for information and its call for a thorough and
impartial investigation of the incident, the Tajik government has apparently taken no action to
punish those responsible for the deaths. In Morocco’s Oukacha Prison, 22 prisoners were buried
alive in September 1997; they had been crammed together in a cell reportedly built to hold eight
inmates at a time which ignited and expedited their deaths. The most common cause of death in
prison is disease, often the predictable result of severe overcrowding, malnutrition, unhygienic

1
Uganda Human Rights Commission.
2
Human Rights Watch Prison Project: world report 2023.
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conditions and lack of medical care. A special commission of Inquiry appointed after the 1995
death of Indian- prominent business man, Rajan Pillai3.

India’s high- security Tihar Central Jail, reported in September 1997 that the 10,000 inmates
held in that institution endured serious health hazards, including overcrowding, “appalling”
sanitary facilities and a shortage of medical staff. Similarly, the same conditions prevail in the
prisons of the former Soviet Union, where Tuberculosis continues to rampage. Russia’s
prosecutor general announced in March that about 2000 in-mates had died of Tuberculosis in
20222. Contrary in Kazakhstan, the disease including drug resistant strains, has reached
epidemic proportions. A.I.D.S4 also plagues many prison populations due to overcrowding.
Never the less, the same conditions exist in Ugandan Prisons where prisoners are overcrowded,
highly susceptible to diseases and other challenges which tampers with the prisoner’s welfare.

Inadequate supervision by guards, easy access to weapons, lack of separation of different

categories of prisoners and fierce competition for basic necessities encourage inmate-on-inmate
abuse in penal facilities. In extreme cases as in certain Venezuelan prisons with one guard for
every 150 prisoners and an underground trade in knives, guns and even grenades; prisoners kill
other prisoners with impunity. Rape, extortion and involuntary Servitude are among the other
abuses frequently suffered by inmates at the bottom of the prison hierarchy. In contrast, powerful
inmates some facilities in Colombia, India and Mexico among others enjoy cellular phones, rich
diets and comfortable lodgings. As these illustrations demonstrate highly in-flux rates of
corruption of Prison guards around the globe; Indeed, In Indonesia, two prisoners escaped in
September 1997 after bribing guards to bring them to the brothel. In Venezuela in 1996, Human
Rights Watch researchers saw scores pf prisoners with bruised and bleeding buttocks, attesting to
the wholesale nature of the punishment meted out by the members of the military force guarding
the prisons. The infirmaries of several prisons held prisoners who had been badly beaten or shot
by members of the guard.

In a jiffy, conditions in many prisons are so deficient as to constitute cruel, inhuman or

degrading treatment, violating article 7 of the International Covenant on Civil and Political
rights. These specific failings are being enumerated under the more detailed provisions of the

3
Rajan Pillai: Stanford University; A Wasted Death: the rise and fall of Rajan Pillai.
4
Artificial Immune Deficiency Syndrome.
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U.N Standard Minimum Rules5 for the treatment of prisoners. A widely known set of prison
standards, the S.M.R6 have been integrated into the prison laws and regulations of many
countries however few if any prison systems observe all of their prescriptions in practice.

2.1 THE RATIONALE FOR IMPRISONMENT.

Why do we punish? Why do we use prison instead of other types of punishment? In this chapter,
we are concerned with the fundamental rationale for the existence of prisons. What do we want
them to be? Punishment is a natural response to fear and injury, and prison seems to be our
favorite punishment7.

2.2 PHILOSOPHY OF PUNISHMENT.

Most people would agree that hurting someone or subjecting them to pain is wrong. However,
punishment, by definition, involves the infliction of pain. Does this make punishment wrong?
Philosophers are divided on this issue. One group believes that inflicting pain as punishment is
fundamentally different from inflicting pain on innocents, and therefore is not inherently wrong.
Another group believes that punishment is a wrong that can be justified only if it results in a
“greater good”)8. Those who hold the first view do not feel it necessary to justify punishment
beyond the fact that the individual deserves it. This would be considered a retributive approach.
The second view justifies punishment through the secondary punishment a pain or unpleasant
experience inflicted upon an individual in response to a violation of a rule or law by a person or
persons who have lawful authority to do so. 29043_CH01_1_21.qxd 9/28/05 8:51 AM Page 3
rationales of deterrence, incapacitation, or rehabilitation. This is called the utilitarian approach
(Durham 1994).

5
Wikipedia.org> S.M.R: Standard Minimum Rule’s basic principle states; there shall be no discrimination on the
ground of race, color, sex, religion, language, political or other opinion, national or social origin, property, birth or
any other status. The religious beliefs and moral precepts of prisoners shall be respected henceforth.
6
Standard Minimum Rules (supra).
7
History and Philosophy of prisons; Joycely M. Pollock- San Marcos: Texas State University.
8
(Murphy 1995).
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2.3 RETRIBUTIVE RATIONALE.

The first philosophical approach (or rationale) is that punishment, strictly defined, is not evil.
Retribution is a term that means balancing a wrong through punishment. While revenge is
personal and not necessarily proportional to the victim’s injury, retribution is impersonal and
balanced. Newman, although recognizing the difficulty of defining punishment, defines it in this
way: “Punishment is a pain or other unpleasant consequence that results from an offense against
a rule and that is administered by others, who represent legal authority, to the offender who
broke the rule”9. The supposition is that by strictly limiting what can be done, to whom and by
whom, the evilness of the action is negated. There are two equally important elements to this
view: first, that society has a right to punish, and second, that the criminal has the right to be
punished. The right of society to punish is said to lie in the social contract. Although this idea
dates back to the ancient Greeks, it gained its greatest currency during the Age of Enlightenment
in the 17th and 18th centuries and is associated with Thomas Hobbes (Leviathan 1651), John
Locke (Two Treatises on Government 1690), and Jean-Jacques Rousseau (Du contrat social
1762). Basically, the concept proposes that all people freely and willingly enter into an
agreement to form society by giving up a portion of their individual freedom for the return
benefit of protection. If one transgresses against the rights of others, one has broken the social
contract, and society has the right to punish (Mickunas 1990). One problematic element to the
social-contract theory of punishment is the fiction that everyone willingly plays a part or had a
part in the agreement to abide by society’s laws. Many authors have suggested that certain
groups in society are, in effect, disenfranchised from the legal system and play no part in its
creation. To assume that such groups break a “contract” they had no part in creating (nor benefit
from) weakens the legitimacy of this theory. If we believe that our political process and even our
justice system is operated for the benefit of only certain groups of citizens, we would also
believe that the social contract is a weak rationale for punishment.

The second element of the retributive rationale is that the criminal deserves the punishment and,
indeed, has a right to be punished. Only by forcing the individual to suffer the consequences of
his actions does one accord them the rights of an equal citizen. Herbert Morris explains this
view: [F]first, . . . we have a right to punishment; second . . . this right derives from a
fundamental human right to be treated as a person; third . . . this fundamental right is a natural,
9
(Newman 1978, 6–7).
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inalienable, and absolute right; and, fourth, . . . the denial of this right implies the denial of all
moral rights and duties (Morris, in Murphy 1995, 75).

To do anything other than to punish is to treat the person as less than equal, perhaps even less
than human. Under this view, correctional treatment is infinitely more intrusive than punishment
because it doesn’t respect the individual’s ability and right to make choices. It regards their
behavior as “controlled” by factors that can be influenced by the intervention (Morris, in
Murphy 1995, 83). It is a primitive, almost instinctual, response of humankind to punish
wrongdoers, as noted by French sociologist Émile Durkheim and cited in Durham (1994, 22).
Punishment is believed to be an essential feature of civilization. The state takes over the act of
revenge and elevates it to something noble rather than base, something proportional rather than
unlimited. Immanuel Kant (1724–1804) supported a retributive rationale: Juridical punishment . .
. can be inflicted on a criminal, never just as instrumental to the achievement of some other good
for the criminal himself or for the civil society, but only because he has committed a crime: for a
man may never be used just as a means to the end of another person. Penal law is a categorical
imperative; Thus, whatever undeserved evil you inflict on another person, you inflict on
yourself.10

In conclusion, the retributive rationale for punishment holds that because of natural law and the
social contract, society has the right to punish, and the criminal has the right to be punished. It is
not an evil to be justified, but rather, represents the natural order of things. According to
Newman (1978, 287), “There is little grace in punishment. Only justice.” In my assertion,
criminals deserve recompense for the damages caused to society through imprisonment and
rehabilitation strategies though the stretch to which this punishment is applied should not be
severe so as to detriment prisoners of their fundamental human rights as International Human
Right’s Law is against inhuman, cruel and degrading punishment of all human beings inclusive
of prisoners.

10
(Kant, cited in Borchert and Stewart 1986, 322).
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2.4 PHILOSOPHERS OF PUNISHMENT AND PENOLOGY.

Cesare Beccaria (1738–1794). Beccaria was an Italian writer during the age of the
Enlightenment, a historical era marked by great advances in political and social thought. He
wrote a treatise on criminal law that was highly critical of the practices of the day, and advocated
major reforms that included ideas that were widely adopted, such as the right to defend oneself
against one’s accusers. The philosophical rationale for these reforms was utilitarianism. He
believed that the objective of punishment should be deterrence, and that the effectiveness of
punishment was based on certainty, not severity. He was largely responsible for major criminal
law reforms in Europe and America.

Jeremy Bentham (1748–1832). Bentham was an English philosopher, economist, and

theoretician. Among his many works was The Rationale of Punishment (1830), in which he
proposed a utilitarian rationale for punishment. Mankind, according to Bentham, was governed
by the pursuit of pleasure and the avoidance of pain. These two masters affected all behavior
decisions and could be utilized to deter criminal behavior through a careful application of
criminal law. He is also known for his design of the “Panoptican Prison.”

Immanuel Kant (1724–1804). Kant was a German philosopher who wrote in the areas of
metaphysics, ethics, and knowledge. He is the founder of “Kantianism,” a philosophical tradition
that explores the limits of human reason and establishes a philosophy of morality based on duty.
His views on punishment would be considered purely retributive. He believed that the criminal
deserved to be punished, but that to punish for other purposes, such as deterrence, was to violate
the “categorical imperative,” specifically, that one should not use others for one’s own end.

2.5 INTERNATIONAL COURTS PERSPECTIVE AND HUMAN RIGHTS

AGENCIES IN ESTABLISHING PRISONER’S RIGHTS.
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J. Sarkins (2008)11, as the courts are the only independent body with the power to bind the rights
for those behind bars sometimes seems nearly impossible because of the isolation from the
society and the lack of interest of the outside world and mostly because of the sometimes
conflicting goals that Correctional Law and Human Rights Law seem to have.

HOME OFFICE (1991)12, the role of the courts is of particular importance to prisoners.
Prisoners, by the fact of their imprisonment, cease to have control over their environment and
regime and are instead almost wholly reliant on the prison authorities to regulate their daily lives.
Indeed, it was recognized in the Woolf Report that 'a prisoner, as a result of being in prison, is
peculiarly vulnerable to arbitrary and unlawful action.

At present the situation in prisons and other places of detention in several States Parties is
characterized by recurrent challenges such as high level of overcrowding, disease, malnutrition,
torture and ill-treatment of inmates and long pre-trial detention periods.

Schmalleger Frank (1991)13 opines that prisons help in the reduction of crime rate and recidivism
by reforming and rehabilitating prisoners. This is through prison work, treatment and counseling
of inmates with mental problems, providing recreational facilities to keep inmates occupied and
reducing boredom. Prisoners should also be allowed a regulated interaction with family members
to keep the family link.

Adler Freda et a! (1996)14 discussed the importance of protection of human rights for prisoners
towards rehabilitation and reformation of offenders. Effective rehabilitation and reformation of
offenders in prison can only be achieved if the basic rights of prisoners are respected. This study
agrees that it is hard to reform offenders if they are subjected to torture and other inhuman
treatments. Prisoners should be given right to access their families, freedom from torture,
11
J. Sarkin, -an overview of human Rights in Prisons worldwide in J. Sarkin (ed.), Human rights In
African Prisons, (2008), p.4. see also F. Vilion, a guide to jurisprudence, (2008) Jointly published in 2008 by
the Association for the Prevention of Torture (APT) and the Center for Justice and International Law
(CEJIL).
12
Home Office (1991) para 14
13
Schmalleger Frank, Criminal Justice Today: An Introductory Text for the Twenty-First Century, Prentice
Hall Inc., Engle Wood Cliffs, New Jersey, 1991.
14
Adler Freda eta\, Criminal Justice: The Core, McGraw Hill Companies Inc., New York, 1996.
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inhuman and degrading punishment. This makes this work important to this study, because the
problem of abuse of prisoners' rights is common in media reports in Uganda, though it discusses
less the law on prisoners' rights.

Senna Joseph, J., and Larry Siegel, J.15, discussed some problems that hinder effective
reformation of prisoners. Most prisons are overcrowded, have limited facilities like outdated
buildings that are fit for human outcasts of society than for rehabilitation and treatment of
offenders. There are weak and uncoordinated laws to ensure implementation of rehabilitation
programs also hinder reformation.

Livingston 2000, pp.309 .321 The stigmatization of this already marginalized population is not
without effect on the enforcement mechanism themselves. Traditionally, human rights bodies
have been relevant towards into the contentious area of prisons condition and instead to allow
states wide description in master that are essentially voiced as domestic poultry. Counting in
2000 on approach of the European human rights bodies to prisons continues up that time,
professor Stephen Livingstone of queen’s university Bconelfos concluded, thus that the
commission of decision given the impression that except in the most egregious cases such
matters are seen as too detailed and threatening to the authority of prisons which this research
seeks to address.

The European court of Human Rights (ECHR), this judicial body that considers alleged violation
under the European conversion of Human Rights has also used the right to life under Article 2 of
the European convention as mechanism to engage the rights to health of prisoners including the
right to medical treatment. According to the court, the right to life enjoins the state not only to
refrain from the institutional and lawful taking of life, but also to taxes appropriate step to
safeguard the lines of those within its (justification. In Edwards & Another V UK (2002) 35
ECR417 Para 54, the failure of the state to provide medical care and health screaming system in
medical care and health screaming system in prison way found to violate the rights of prisoners
which this research seeks to address and thus the relevance of this research. This review will help

15
Senna Joseph, J., and. Siegel Larry, J., Introduction to Criminal Justice, 5thEdn, West Publishing Co.,
New York, 1990.
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the researcher to analyze the situation at hand and recommend ways of ensuring promotion and
protection of rights of indigent prisoners.

2.6 FUNCTIONS AND MANDATE OF UGANDA PRISON SERVICES.

The Prisons Act, 2006 provides for the mandate and functions of a Uganda Prisons Service
composed of Central and former Local Government Prisons and spells out the duties of the
UPS16 as to protect, promote and fulfill the rights of those incarcerated. Section 3 spells out the
key objective as "to contribute to the protection of all members of society by providing
reasonable, safe, secure and humane custody and rehabilitation of offenders in accordance to
universally accepted standards". The Prison Act represents a milestone in penal reform in
Uganda. It offers a modernized legal framework for incarceration, entrenches, human rights in
penal policy, caters for the prisoners’ rights, consolidates and strengthens the management of
UPS. It is the mandate of UPS to enforce the new Act.

The Prisons Act, 2006, section 116 mandates the UPS to take over management and
administration of Local Administration Prisons. The new law introduces a number of issues such
as access to information, complaint handling, establishment of Prisons Council and Authority,
internal and external oversight, the right to be heard for both inmates and staff whereas subject to
disciplinary measures/action.

The Act was passed by Parliament at the end of FY 2005/06. The law became effective on 14th
July, 2006 after completing the budgeting process for FY 2006/07. Section 114 of the Prisons
Act, 2006 states that: - The functions and administration of Local Administration Prisons shall be
taken over by the Central Prisons Service. A person who immediately before coming into force
of this act held or was acting in any office in local administration prisons, so far as consistent
with this Act, shall be taken to have been appointed as from the coming into force of this act in
the equivalent office under this Act. A person being held as a prisoner or detained in custody in a
local administration prison at the time this Act came into force shall be taken to be held or

16
Uganda Prison Services.
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detained by the Uganda Prison Service. The Assets and Liabilities of local administration prison
shall be taken over by Uganda Prisons Service.

2.7 FUNCTIONS.
Section 5 of the Prisons Act provides the functions of UPS as follows: -
 To ensure that every person retained legally in a prison is kept in humane, safe custody,
provided in court when requires until lawfully discharged or removed from prison.
 To facilitate the social rehabilitation and reformation of prisoners through specific training and
educational programmes.
 To facilitate the re-integration of prisoners into their communities.
 To ensure performance by prisoners of work reasonably necessary for the effective
management of prisons.
 To perform other such functions as the Minister after consultation with the Prisons Authority,
may from time to time assign to the service.

Constitutional, Legislative and Policy Mandates

The Uganda government has ratified a number of treaties providing minimum standards for
prisons condition and prisoners’ rights. The Uganda Prisons service derives its mandate from the
following: -
 Article 215 of the constitution of the Republic of Uganda
 Prisons Act, 2006
 United Nation Minimum Rules for treatment of offenders (1955).

2.8 CONCLUSION.

From the views retrieved from social media reports, Human Right’s Agencies and other relative
sources still portray the existing inhuman and unfathomable conditions that prisoners heed,
despite their social status, they should be accorded a minimal standard of dignity that respects the
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fundamentality of life. To attest to these various governments, Human rights bodies should
devise appropriate measures taking into consideration Basic Principles for Treatment of
Prisoners adopted and proclaimed by the General Assembly Resolution 45/111 of 14th December
1990 as follows; -

1. All prisoners shall be treated with the respect due to their inherent dignity and value as human
beings.
2. There shall be no discrimination on the grounds of race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.

3. It is, however, desirable to respect the religious beliefs and cultural precepts of the group to
which prisoners belong, whenever local conditions so require.

4. The responsibility of prisons for the custody of prisoners and for the protection of society
against crime shall be discharged in keeping with a State's other social objectives and its
fundamental responsibilities for promoting the well-being and development of all members of
society.

5. Except for those limitations that are demonstrably necessitated by the fact of incarceration, all
prisoners shall retain the human rights and fundamental freedoms set out in the U.D.H.R
(Universal Declaration of Human Rights), and, where the State concerned is a party, the
International Covenant on Economic, Social and Cultural Rights, and the International
Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other
rights as are set out in other United Nations covenants.

6. All prisoners shall have the right to take part in cultural activities and education aimed at the
full development of the human personality.

7. Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction

of its use, should be undertaken and encouraged.

8. Conditions shall be created enabling prisoners to undertake meaningful remunerated

employment which will facilitate their reintegration into the country's labour market and permit
them to contribute to their own financial support and to that of their families.
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9. Prisoners shall have access to the health services available in the country without
discrimination on the grounds of their legal situation.

10. With the participation and help of the community and social institutions, and with due regard
to the interests of victims, favourable conditions shall be created for the reintegration of the ex-
prisoner into society under the best possible conditions.

11. The above Principles shall be applied impartially.

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Most Trivial Dictators; e.g. The rise and fall of Idi Amin Dada from 1971-1979.
Human Rights (Enforcement) Act, 2019. See also; Part IV of the 1995 Constitution of Uganda as
amended.
Article 20(2) of the !995 Uganda Constitution as amended; “the rights and freedoms of the
individual and groups enshrined in this chapter shall be respected, upheld and promoted by all
organs and agencies of Government and by all persons.”
United Nations: Peace, Dignity and Equality on a healthy planet.
Part IV of the 1995 Constitution of Uganda as amended.
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United Nations: Global Issues.
The Universal Declaration of Human Rights adopted by the General Assembly in 1945 and 1948
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the rather authorized 120 individuals.
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(H.U.R.I.N.E.T)- Human Right’s Network- Uganda.

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precepts of prisoners shall be respected henceforth.
Standard Minimum Rules (supra).
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(Newman 1978, 6–7).
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Hall Inc., Engle Wood Cliffs, New Jersey, 1991.

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